EKM v State of NSW – Client receives compensation from police for assault and malicious prosecution

Facts: Police assault citizen asleep in vehicle

EKM was sleeping in the back seat of his vehicle, next to his teenage son and young niece. An unknown male was driving the vehicle. A police patrol vehicle activated its sirens and signalled for EKM’s vehicle to pull over to perform a random breath test (RBT) on the driver. Upon bringing the vehicle to a stop, the unknown driver jumped out and ran down a nearby driveway.

Two police officers got out of the patrol car and approached EKM’s vehicle. Police questioned EKM’s niece and son who the driver was, which they were unable to answer. The police then forcibly shook EKM. Confused and disorientated upon being shaken awake, EKM also did not know the identity of the driver.

After a heated argument, police grabbed the front of EKM’s shirt so that his shirt collar was choking him. They then pulled him out of the vehicle and onto the road. A police officer sprayed OC (Oleoresin Capsicum or pepper) spray in EKM’s face. EKM felt immediate pain and burning to his face and eyes. Shortly after, an ambulance was called and treated EKM.

Two days later, Police created and served a Future Court Attendance Notice (CAN). The notice charged EKM with assault police officer in execution of duty. The matter proceeded to a defended hearing at the Local Court. The Magistrate found the police officer had not been acting in execution of his duty at the time of the alleged assault, and dismissed the charges.